Court File and Parties

COURT FILE NO.: 1777/17 DATE: 2022-10-21 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Estate of Wilma Sutherland and Robert Baker, Plaintiffs AND: London Health Sciences Centre, Dr. Deric Morrison, Jane Doe/John Doe Doctors, Anne Elizabeth McAllister R.N., Rebecca Rose Pieterson R.N., Sidra Nadeem R.N., and Jane Doe/John Doe Nurses, Defendants

BEFORE: Heeney J.

COUNSEL: Alexa Duggan, for the Plaintiffs A.J. Billes, for the Defendants

HEARD: October 17, 2022 by videoconference

Endorsement

[1] The plaintiffs bring this motion to amend the Statement of Claim to limit the plaintiffs’ claim to $200,000, and for an order continuing this action under simplified procedure in accordance with r. 76.02.

[2] The defendants oppose this amendment, even though it would serve to reduce their exposure to damages from $950,000 to $200,000.

[3] By way of brief overview, the action arises out of two falls and a left-sided acute subdural hematoma suffered by Wilma Sutherland in August 2015, while in the care of the defendants. The case proceeded through discoveries, and the trial record was filed on October 28, 2020.

[4] On April 4, 2021, Wilma Sutherland died of natural causes. An order to continue in the name of the estate was obtained on May 27, 2021

[5] The matter was ultimately scheduled, on consent, to proceed as a seven-day, non-jury trial commencing May 24, 2022. However, it was not called for trial at that sittings. This is not surprising, since London faces a substantial backlog of criminal and urgent family cases, largely due to the pandemic, which take precedence over civil trials, and which routinely consume all or most of the available trial time.

[6] The plaintiff Wilma Sutherland’s claim for damages included a claim for cost of future care. In view of her death, that claim has been eliminated. Counsel have reassessed the case and have determined that damages will not exceed $200,000, and seek to amend the Statement of Claim accordingly.

[7] While the plaintiffs have asked for an order that the case will continue under the simplified procedure, such an order would not appear to be necessary. If the amendment is granted such that the only thing being claimed is monetary damages of $200,000, the case will automatically be continued under the simplified procedure pursuant to r. 76.02(7), which reads as follows:

(7) An action that was not commenced under this Rule, or that was commenced under this Rule but continued under the ordinary procedure, is continued under this Rule if,

(a) the consent of all the parties is filed;

(b) no consent is filed but,

(i) the plaintiff’s pleading is amended under Rule 26 to comply with subrule (1), and

(ii) all other claims, counterclaims, crossclaims and third party claims comply with this Rule; or

(c) a jury notice delivered in accordance with subrule 76.02.1 (2) is struck out.

[8] Since the trial record has been filed, the plaintiffs require leave to bring this motion, pursuant to r. 48.04(1):

48.04 (1) Subject to subrule (3), a party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court.

[9] As summarized in Edwards v. Alcock, 2022 ONSC 4099 at para 8, and in several other cases, there are two recognized approaches the court can take for granting leave under r. 48:

a. Where the moving party shows a substantial or unexpected change of circumstances since the filing of the trial record, or

b. If it is in the interests of justice.

[10] However, different considerations may apply with respect to a motion for an amendment to pleadings, because pleadings may be amended at any stage of an action, including after the matter has been set down for trial. Rule 26.01 provides as follows:

26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[11] Borins J. made that point in Gloucester Organization Inc. v. Canadian Newsletter Managers Inc., 1995 7144 (ON SC), [1995] O.J. No. 68 (Ont. Gen. Div.), at para. 13:

… the liberal amendment policy reflected in r. 26.01, when read with r. 1.04(1) and 2.01(1), compels a consideration of different principles in the exercise of judicial discretion when leave is sought under r. 48.04(1) to bring a motion for leave to amend a pleading, than when leave is sought to proceed with a motion for other relief. In this regard, it is my view that r. 26.01 defines the scope of the discretion to be exercised by the court when leave is sought to bring a motion for leave to amend a pleading. Therefore, the court should take into consideration, together with any other relevant factors, whether the granting of leave to bring such a motion would result in prejudice that could not be compensated for by costs or an adjournment. It follows that the master should not have taken into consideration, in the exercise of his discretion, the plaintiffs’ failure to establish “any unexpected change in circumstances such that to deny leave [to bring a motion for leave to amend the statement of claim] would be manifestly unjust”.

[12] It is ultimately academic which considerations properly apply here because, in my view, all of them support the granting of both leave to bring the motion, and leave to amend the Statement of Claim.

[13] As to the first, the death of Wilma Sutherland is clearly a substantial and unexpected change of circumstances. It has resulted in the elimination of a substantial head of damages in that the claim for the cost of future care, which is a significant element of virtually every personal injury case, no longer exists. The defendants argue that there is no evidence to support this argument. However, the Statement of Claim clearly pleaded a claim for the cost of future care. We know for a fact that, pleaded or not, such a claim no longer exists, due to the death of Wilma Sutherland. I take counsel at her word, as an officer of the court, that, having reassessed their case in light of the death of Wilma Sutherland, damages will not exceed $200,000. Furthermore, in the affidavit of Matthew Reid, sworn June 13, 2022, filed in support of the motion, he attests that he now assesses the plaintiffs’ damages at $200,000. The defendants did not seek to cross-examine him on that affidavit.

[14] Plaintiffs’ counsel does concede that an error was made, in that the proposed amended pleading should have deleted the claim for future care costs in addition to reducing the amount of damages claimed.

[15] Counsel for the plaintiffs also argued that the pandemic constitutes another change of circumstances, but the pandemic struck the world in March 2020, seven months before the trial record was filed. Accordingly, I do not accept that submission.

[16] As to whether it is in the interests of justice to grant leave, the events which gave rise to this lawsuit occurred seven years ago. The surviving plaintiff wants closure, and wishes to have a trial as soon as possible. A 5-day simplified trial will be much easier for the court to accommodate with its limited judicial resources, and is therefore much more likely to be called for trial than an ordinary trial that will take much longer.

[17] On that point, the realistic length of an ordinary trial of this action demands some scrutiny. In May 2022, all counsel agreed to schedule it for seven days. However, in the defendants’ Factum there is a chart setting out the time that will be required for examination in chief of the defendants’ witnesses. The total amounts to five days. This does not take into consideration the time it will take for plaintiffs’ counsel to cross-examine. Assuming that cross-examination is normally at least half as long as examination in chief, and often much longer, the length of the case for the defence is actually about 8 days. The defendants’ chart also does not take into account the length of the plaintiffs’ case, nor opening and closing arguments. Given that the plaintiffs have the onus of proof, it is reasonable to conclude that their case will be at least as long as that of the defendants.

[18] The bottom line is that an ordinary trial would actually take somewhere in the neighbourhood of 15 days or more. I conclude that the 7-day estimate that was given at the time this case was scheduled for trial was grossly understated. Had the trial proceeded in May 2022, counsel would undoubtedly have been asking the trial judge for substantially more time to complete the case. This happens far too often in our courts, where counsel underestimate the duration of their trial, anticipating that once the trial begins they will be allowed as much time as they need to complete it.

[19] With a 5-day simplified procedure trial, no time at all will be taken up by examinations in chief, because that evidence will all be contained in the affidavits filed at the outset of the trial. That will leave the entire 5 days available for cross-examinations and submissions. This will provide both sides with much more time for cross-examinations than had they tried to fit everything within a seven-day time slot.

[20] In determining whether granting leave, and granting the amendment itself, is in the interests of justice, it is worthwhile to consider r. 1.04(1), which reads as follows:

1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[21] I have already accepted the assurances of counsel for the plaintiffs that this case is worth no more than $200,000. Pursuant to r. 76.02, the simplified procedure “shall” be used in such a case, were it to be commenced after that rule came into effect. I infer that the drafters of the Rules have determined that a trial, limited to 5 days, where the evidence in chief is submitted by affidavit and the other efficiencies provided in r. 76.02 apply, is a just, expeditious and proportionate manner of trying a case that involves a sum in that amount or less.

[22] The defendants argue that this is a complicated medical malpractice case, that cannot be completed in 5 days, even with those efficiencies. However, r. 76.02 makes no exceptions for complicated medical malpractice cases. Had this action been commenced under the simplified procedure, the defendants would have had no means of opting for an ordinary trial, no matter how complicated the case was.

[23] Where the case is brought within r. 76.02 by means of an amendment to the pleadings, the consent of the defendant is not required, and once again the defendant cannot opt for an ordinary trial no matter how complicated the case is. This is clear from reading r. 76.02(7), quoted above.

[24] Furthermore, it has already been noted that the court is facing a substantial backlog, and trial time for civil cases is at a premium. Given that only $200,000 is, in fact, at stake, it is in the interests of justice to limit the parties to 5 days for their trial, rather than expending as much as 10 additional days or more to have an ordinary trial. This will free up those additional judicial resources to try other cases. And since r. 1.04 favours the “least expensive” determination of a case, it need hardly be said that a 5-day trial will be considerably cheaper than one lasting as much as three times that long.

[25] All of this dovetails into the third consideration, flowing from r. 26.01, which provides that the court “shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment”.

[26] For the reasons just given, I conclude that the defendants cannot argue that they are prejudiced by being denied an ordinary trial. Given that only $200,000 is at stake, a simplified trial is a just, expeditious and proportionate manner of trying the case. The defendants are being treated no differently than any other defendant facing a lawsuit for $200,000 or less.

[27] The defendants argue that a simplified trial will provide them with insufficient time to put in all of their evidence. I disagree. They will be able to put into an affidavit anything that each of their witnesses would have said in their examination in chief, and file it at the outset of the trial. Their entire case in chief can be put in in the time it takes to file these documents. The only limitation that arises with respect to the case for the defence is that plaintiffs’ counsel will be limited in the amount of time they can take to cross-examine the defendants’ witnesses.

[28] The defendants also argue that a simplified trial will hinder the ability of the judge to analyze the evidence and render a just verdict. I disagree. Having all of the evidence-in-chief in writing at the outset of the trial would, in fact, make things considerably easier for the trial judge, who normally has to rely on his or her own notes to record the testimony.

[29] The defendants also argue that they have conducted this case throughout as one that will lead to an ordinary trial, and will be prejudiced if it is tried under the simplified procedure. However, if they are successful at trial, the $50,000 cap on costs will not apply, and they will be compensated for all of the additional time that they spent preparing for an ordinary trial. This flows from r. 76.12.1, which provides as follows:

76.12.1 (1) Except as provided for under rule 76.13 or an Act, no party to an action under this Rule may recover costs exceeding $50,000 or disbursements exceeding $25,000, exclusive of harmonized sales tax (HST).

(2) Subrule (1) does not apply in the case of an action that was commenced before January 1, 2020.

[30] I conclude that the defendants have not established any prejudice that cannot be compensated for by costs or an adjournment.

[31] I should note that the defendants rely upon Edwards v. Alcock, (supra) and Andres v. Rasheid, 2022 ONSC 317. In both cases, the plaintiff’s request to amend their pleadings to reduce their claim to $200,000, so as to bring the case within r. 76.02, was denied. However, these cases are distinguishable, in that both cases were to be tried with a jury, and the fact that the defendants would be denied a trial by jury if the cases were to proceed under simplified procedure was an important factor in denying the relief requested. The case at bar is a non-jury case.

[32] Furthermore, in Edwards, the motion judge concluded that the real reason for the motion was so that the plaintiff could limit their costs exposure. In Andres, the motion judge concluded that the motion was brought for “tactical” reasons. In the case at bar, I have no such concerns. The death of Wilma Sutherland, and the impact that it had on the plaintiffs’ claim for damages, is a legitimate and appropriate motivation for this motion. While it could, and perhaps should, have been brought sooner, that does not affect the merits of the motion.

[33] Accordingly, I conclude that leave to bring this motion should be granted, and that the plaintiffs should similarly be granted leave to amend the Statement of Claim to limit the amount claimed to $200,000, so as to bring the case within r. 76.02.

[34] There is one additional issue to deal with, beyond the issue of costs of the motion.

[35] The defendants argued, in the alternative, that should the amendment be granted, they would be seeking an order for costs under r. 76.13. That rule provides as follows:

76.13 (1) Regardless of the outcome of the action, if this Rule applies as the result of amendment of the pleadings under subrule 76.02 (7), the party whose pleadings are amended shall pay, on a substantial indemnity basis, the costs incurred by the opposing party up to the date of the amendment that would not have been incurred had the claim originally complied with subrule 76.02 (1), (2) or (2.1), unless the court orders otherwise.

[36] While this issue was touched upon during oral argument, it was not fully argued, nor was a bill of costs presented by the defendants. I will, therefore, deal with the defendants’ entitlement to, and quantum of, costs under r. 76.13 by way of written submissions.

[37] The plaintiffs being the successful parties on this motion, the plaintiffs shall file brief written submissions on the costs of this motion, within 15 days. The defendants shall file their brief response on the costs issue, together with their submissions on r. 76.13 costs, within 10 days thereafter. The plaintiffs shall file their reply on the costs issue, together with their response on r. 76.13 costs, within 10 days thereafter. Finally, the defendants shall file their reply on r. 76.13 costs, within 5 days thereafter.

Mr. Justice T. A. Heeney

Date: October 21, 2022